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Wednesday, July 17, 2013

In a previous blog post, we reported
on a 2011 Illinois Attorney General PAC opinion determining that text messages
sent between public officials and transmitted over privately owned cell phones
are subject to release under FOIA.We
also reported that the PAC's ruling was upheld last June by the Sangamon
Circuit court.Yesterday, an Illinois
appellate court again upheld these rulings that city communications on
privately owned communication devices are subject to release under FOIA. City of Champaign v. Madigan.

In coming to its conclusion, the
appellate court fashioned a two-part test in determining whether electronic
communications qualify as public records.The threshold question is whether communication relates to “public
business,” which the court defined using the Merriam-Webster Dictionary
definition as “business or community interests as opposed to private affairs.”

The second question, which the
court spent a considerable time analyzing, defined the term “public body” for
the purposes of FOIA.Here, the court
agreed with the city that individual public officials are not in themselves a
“public body” because a single person on their own cannot carry out official
business.Instead, the court’s analysis
turned on the simultaneous nature of the communication, whether the exchange of
messages mimics an actual meeting.

The court opined that electronic
communications forwarded to the requisite number of members to constitute a
quorum is in “the possession of the public body” and is a part of the public
record.Alternatively, messages sent to
and received during an official meeting or study session, regardless if on
private or public devices, are also owned by the public body and subject to
public record laws.Moreover, messages
received on a private device but then forwarded to the public device become an
official part of the public record.

In this case, the
reporter’s request satisfied the court’s test.The requested information was related to public business and was sent
“during the time city council meetings (and study sessions) were
convened.”Thus, the court found the
city should turn over the requested information to the city’s FOIA officer.

Finally, the Fourth District strongly emphasized the
need for legislative action regarding electronic communications and public
record laws.The court “[encouraged]
local municipalities to consider promulgating their own rules prohibiting city
council members from using their personal electronic devices during city council
meetings.”